Karnataka High Court
Vijay S/O. Yallappa Pattan vs Durgadevi Trust on 11 September, 2023
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NC: 2023:KHC-D:10541
RFA No. 100212 of 2014
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 11TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
REGULAR FIRST APPEAL NO. 100212 OF 2014 (POS-)
BETWEEN:
HANUMANTAPPA
S/O RAMANNA BETAGERI,
AGE: 62 YEARS, OCC: BUSINESS,
R/O: BYADAGERI ONI, GHANTIKERI,
HUBLI.
...APPELLANT
(BY SRI. S C BHUTI, ADVOCATE)
AND:
DURGADEVI TRUST,
REPRESENTED BY SURVIVING SOLE TRUSTEE,
SMT. IRAWWA W/O SHIVAPPA CHOLGERI
@ PUJAR, AGE: 52 YEARS,
OCC: HOUSEHOLD WORK,
R/O: GHANTIKERI ONI, HUBLI
...RESPONDENT
Digitally
signed by
SAROJA
SAROJA HANGARAKI
HANGARAKI Date: (BY SRI. A.A.PATHAN, ADVOCATE FOR
2023.09.26
12:21:56
+0530 SRI. J.M.CHOUDRI, ADVOCATE FOR C/R1)
THIS RFA IS FILED UNDER SEC.96 OF CPC., AGAINST THE
JUDGMENT AND DECREE DTD:26.08.2014 PASSED IN
O.S.NO.4/2012 ON THE FILE OF THE PRL. DISTRICT AND
SESSIONS JUDGE, DHARWAD, PARTLY DECREEING THE SUIT
FILED FOR POSSESSION AND MESNE PROFITS.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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NC: 2023:KHC-D:10541
RFA No. 100212 of 2014
JUDGMENT
The defendant in O.S.No.4/2012 on the file of the Principal District Judge, Dharwad is before this Court challenging the decree for possession.
2. In terms of the impugned judgment and decree, the defendant is directed to hand over the vacant possession of the suit premise to the plaintiff within three months from that date.
3. The defendant who is before this Court raises preliminary objection to the jurisdiction of the Court to entertain a suit under Section 92 of the Code of Civil Procedure.
4. It is urged before this Court by the learned counsel for the appellant that the application is not filed under Section 92 of the Code of Civil Procedure to prosecute the case under Section 92.
5. Section 92 of Code of Civil Procedure reads as under:
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NC: 2023:KHC-D:10541 RFA No. 100212 of 2014 "92. Public Charities.- (1) In the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the Court is deemed necessary for the administration of any such trust, the Advocate-General, or two or more persons having an interest in the trust and having obtained the leave of the Court may institute a suit, whether contentious or not, in the principal Civil Court of original jurisdiction or in any other Court empowered in that behalf by the State Government within the local limits of whose jurisdiction the whole or any part of the subject-matter of the trust is situate to obtain a decree,-
(a) removing any trustee;
(b) appointing a new trustee;
(c) vesting any property in a trustee;
1[(cc) directing a trustee who has been removed or a person who has ceased to be a trustee, to deliver possession of any trust property in his possession to the person entitled to the possession of such property];
(d) directing accounts and inquires;
(e) declaring what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust; -4-
NC: 2023:KHC-D:10541 RFA No. 100212 of 2014
(f) authorizing the whole or any part of the trust property to be let, sold, mortgaged or exchanged;
(g) settling a scheme; or
(h) granting such further or other relief as the nature of the case may require.
(2) Save as provided by the Religious Endowments Act, 1863 (20 of 1863) or by any corresponding law in force in [the territories which, immediately before the 1st November, 1956, were comprised in Part B States], no suit claiming any of the reliefs specified in sub-section (1) shall be instituted in respect of any such trust as is therein referred to except in conformity with provisions of that sub-section.
(3) The Court may alter the original purposes of an express or constructive trust created for public purposes of a charitable or religious nature and allow the property or income of such trust or any portion thereof to be applied cy pres in one or more the following circumstances, namely :-
(a) where the original purposes of the trust, in whole or in part,-
(i) have been, as far as may be, fulfilled; or
(ii) cannot be carried out at all, or cannot be carried out according to the directions given in the -5- NC: 2023:KHC-D:10541 RFA No. 100212 of 2014 instrument creating the trust or, where there is no such instrument, according to the spirit of the trust;
or
(b) where the original purposes of the trust provide a use for a part only of the property available by virtue of the trust; or
(c) where the property available by virtue of the trust and other property applicable for similar purposes can be more effectively used in conjunction with, and to that end can suitably be made applicable to any other purpose, regard being had to the spirit of the trust and its applicability to common purposes; or
(d) where the original purposes, in whole or in part, were laid down by reference to an area which then was, but has since ceased to be, a unit for such purposes; or
(e) where the original purposes, in whole or in part, have, since they were laid down,-
(i) been adequately provided for by other means, or
(ii) ceased, as being useless or harmful to the community, or
(iii) ceased to be, in law, charitable, or
(iv) ceased in any other way to provide a suitable and effective method of -6- NC: 2023:KHC-D:10541 RFA No. 100212 of 2014 using the property available by virtue of the trust, regard being had to the spirit of the trust."
6. On reading of the aforementioned provision, it is apparent that the only suits specified in Section 92 of the Code of Civil Procedure can be entertained by the Principal Civil Court of original jurisdiction i.e. the District Court.
7. This Court having considered the contentions, is of the view that the suit filed before the District Court i.e. the Principal Civil Court of original jurisdiction does not lie before the District Court because the suit is filed not falling under any of the categories specified under Section 92 of Code of Civil Procedure.
8. Accordingly, the judgment and decree passed by the District Court are without jurisdiction are to be set aside.
9. Accordingly, the appeal is allowed. The impugned judgment and decree dated 26.08.2014 in -7- NC: 2023:KHC-D:10541 RFA No. 100212 of 2014 O.S.No.4/2012 on the file of the Principal District Judge, Dharwad are set aside.
10. The plaint is returned to the plaintiff to present it before the appropriate Court with appropriate modifications. Before presenting the plaint before the proper Court, the plaintiff is at liberty to make necessary corrections in the plaint so as to bring it in the purview of the jurisdictional Court.
Sd/-
JUDGE SH List No.: 1 Sl No.: 0